Barrister Anthony Kayode Towoju & Ors V. The Governor of Kwara State & Ors (2005)

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ABDULLAHI, J.C.A.

By originating summons filed by the plaintiffs who are appellants in this appeal, the following 5 questions were sought to be determined as follows:

1. Whether the Governor of Kwara State has power(s) under the 1999 Constitution; the Commission of inquiry Law of Kwara State and the 1999 Local Government Law of Kwara State to set up the Judicial Commission of Enquiry in respect of the Accounts and Finances of the Local Government Councils in Kwara State from 1999 to May, 2002.
2. Whether the Governor or any other person or authority in Kwara State has power(s) under the 1999 Constitution and the 1999 Local Government Law of Kwara State to commission external auditors to examine the finances and audit the accounts of the Local Government councils in Kwara State, from 1999 to May, 2002; with particular reference to sections 7 & 128 of the Constitution and Section 59 of the Local Government Law of Kwara State, 1999.
3. Whether the Kwara State Government can act on the purported report produced by the external auditors so commissioned by the Governor as the basis for setting up the Judicial Commission of Enquiry to probe the tenure of the plaintiffs in their various Local Government Councils of Kwara State from 1999 to May, 2002 and whether the report(s) of the external auditors is/are not liable to be set aside.
4. Whether the State Government has not already found the appellants guilty by reason of the address/terms of reference given to the Commission of Enquiry, which contained indictment and legal conclusions to the prejudice of the plaintiffs.
5. Whether the Kwara State Government and the external auditors have not breached the plaintiffs’ right to fair hearing enshrined in the 1999 Constitution of the Federal Republic of Nigeria by the manner in which, the said external auditors carried out the assignment without giving the plaintiffs the opportunity of being heard.

Based on the questions (supra), the plaintiffs claimed the following reliefs stated hereunder:

“1. Declaration that the setting up of the Judicial Commission of Enquiry by the Governor of Kwara State to probe and/or enquire into the finances of plaintiffs as chairmen in their respective Local Government Councils of Kwara State is ultra vires, null and void and of no effect whatsoever, having regards to the provisions of 1999 Constitution, Commission of Enquiry Law and 1999 Local Government Law of Kwara State.

2. Declaration that the commissioning of external auditors by the Governor of Kwara State to audit the accounts of Local Government Councils in Kwara State from 1999 to 2002 covering the tenure of office of the plaintiffs as chairmen in their respective Local Government Councils of Kwara State is ultra vires, null and void and of no effect whatsoever having regards to the provisions of 1999 Constitution and 1999 Local Government Law of Kwara State.
3. Declaration that the act of the external auditors in auditing the accounts of the Local Government Councils in Kwara State as it affects the tenure of office of the plaintiffs as Chairmen from 1999 to 2002 is ultra vires, null and void and of no effect whatsoever.
4. Declaration that the report of the external auditors as it affects the tenure of office of the plaintiffs as Chairmen from 1999 to 2002 cannot form the basis of a valid Judicial Commission of Enquiry against the plaintiffs and the said report is liable to be set aside.
5. Declaration that the external auditors and Kwara State Government breached the applicants’ fundamental right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria by auditing and producing a report indicting the plaintiffs in respect of plaintiffs’ tenure, without giving them the opportunity of being heard at all.

The plaintiffs sought two other ancillary orders as follows:-

“1. An Order quashing the report of the external auditors indicting the plaintiffs and published in various Newspapers particularly Herald Newspaper of 9th March, 2004.

2. An Order restraining the Judicial Commission of Enquiry from exercising jurisdiction in any manner whatsoever in respect of any of the plaintiffs.”

The Originating Summons was supported by a 20 paragraph affidavit deposed to by the 1st plaintiff, Barrister Anthony Kayode Towoju sworn to on the 23rd day of March, 2004. Attached to this affidavit were exhibits A, B and C. A second affidavit in support of the originating summons dated and filed on 31st March, 2004 was deposed to by the 2nd plaintiff, one Comrade Abdullahi Lade, annexed to this affidavit was exhibit D, audit certificate issued by the Auditor General of Local Government in respect of Patagi Local Government where he was the Chairman.

The Respondents on the other hand filed a 21 paragraph counter affidavit to the one filed by the plaintiffs. This counter-affidavit was deposed to on the 26th day of March, 2004 by one Yusuf Kawu Daibu, a civil servant who was appointed the secretary of the commission in contention. Attached to this counter-affidavit were two exhibits, a certified true copy of the terms of reference of the commission and a copy of the Oath subscribed by each member of the said commission. Needless to say, both parties relied on the averments of the supporting affidavit as well as the counter-affidavit. Reference to relevant averments will be made in the course of writing this judgment as and when it is appropriate.

The facts leading to this appeal are as follows:

The first respondent, who is the Governor of Kwara State, pursuant to the powers conferred on him under and by virtue of section 2 of the Commissions of Enquiry Law of Kwara State, 1994, set up a Commission of Inquiry under the Chairmanship of the 4th respondent to, amongst others examine the existing regulations and procedures in the financial management of all the Local Government Areas of the State.

Dissatisfied with the action of the 1st respondent and having felt that, this is a constitutional matter in that it is the House of Assembly of the state that is vested with the power to conduct enquiries into the affairs of the Local Governments, the appellants, who were chairmen of the 16 Local Government Areas of the State between June, 1999 and May, 2002 approached the High Court of Kwara State via an originating summons dated 22nd March, 2004 and filed on 23rd March, 2004, where they formulated five questions for determination by the lower court. They also sought for five declaratory reliefs and two other ancillary orders.

The High Court presided over by Sade Ojo (J) in a well-considered ruling delivered on the 24th of May, 2004 dismissed the plaintiffs’ claim. The plaintiffs, now appellants in this court filed a notice of appeal consisting of five grounds on 1st of June, 2004. They are seeking for an order allowing the appeal, and setting aside the judgment of the trial Court and granting all their reliefs.

In accordance with the rules of this court, both parties filed and exchanged briefs of argument. The appellants in their brief dated and filed on the 6/10/04 formulated three issues for determination as follows:

“1. Whether the learned trial Judge is right, in holding that the Governor of Kwara State can perform the function specially assigned to the House of Assembly of Kwara State by the 1999 Constitution of the Federal Republic of Nigeria and Kwara State Local Government Law No. 6 of 1999 with regards to the investigation of the affairs of Local Government. Grounds 1 & 2.